Employer / obligated entity
Employers are companies and public-sector legal entities that, under the German Whistleblower Protection Act (HinSchG), are required to set up and operate an internal reporting channel for reports of violations.
Under the German Whistleblower Protection Act (HinSchG), the term employer (Beschaeftigungsgeber) refers to the natural and legal persons, legally capable partnerships and public authorities for whom whistleblowers work or have worked. The concept matters above all for the obligation to set up a reporting channel: employers with, as a rule, at least 50 employees must establish and operate an internal reporting office under Section 12 HinSchG. Below this threshold there is generally no obligation, although a channel may still be set up voluntarily.
When calculating the threshold of 50 employees, the headcount is decisive rather than full-time equivalents; part-time staff, apprentices and, as a rule, temporary agency workers must also be counted. Irrespective of headcount, an obligation to set up a channel applies to certain financial-sector undertakings (such as investment firms, capital management companies and credit institutions) as well as to legal entities of the public sector. Within a group, it should be noted that each legally independent company is in principle a separate employer, so the obligation applies individually to each obligated company.
Employers with 50 to 249 employees may share resources for operating the internal reporting office and use a joint facility; however, the duty to receive reports and to take follow-up measures remains with the respective employer. Operation of the reporting office may also be outsourced to third parties (such as external ombudspersons or service providers) without transferring legal responsibility. Breaches of the duty to establish and operate a channel can be sanctioned as an administrative offence with a fine.
Legal Basis
Section 3 (9), Section 12 HinSchG (German Whistleblower Protection Act)
Practical Example
A mid-sized manufacturing company employs 70 people, including 12 part-timers and four apprentices. The compliance officer counts by headcount, arriving at 70 employees and thus exceeding the threshold of 50. She therefore sets up an internal reporting office, appoints a qualified and independent person as the responsible officer, provides a confidential reporting channel and documents the procedure. She assesses a sister company with only 30 employees separately and finds that no obligation applies there, but decides on a voluntary joint use of the reporting office.